331 F.3d 982 (D.C. Cir. 2003), 01-3016, U.S. v. Redman

Docket Nº:01-3016
Citation:331 F.3d 982
Party Name:U.S. v. Redman
Case Date:June 17, 2003
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 982

331 F.3d 982 (D.C. Cir. 2003)

UNITED STATES of America, Appellee

v.

Eric Sean REDMAN, a/k/a Eric Redmond, Appellant

No. 01-3016.

United States Court of Appeals, District of Columbia Circuit.

June 17, 2003.

Argued Feb. 20, 2003.

Appeal from the United States District Court for the District of Columbia (No. 00cr00198-01).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for the appellant. A.J. Kramer, Federal Public Defender, was on brief.

Patricia A. Heffernan, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher and Roy W. McLeese III, Assistant United States Attorneys, were on brief.

Before: HENDERSON and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

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KAREN LeCRAFT HENDERSON, Circuit Judge:

Eric Sean Redman (Redman) appeals the district court's denial of his motion to suppress evidence, asserting that the police search incident to his arrest violated the Fourth Amendment to the United States Constitution. As explained below, we conclude that Redman waived his challenge to the protective sweep and, accordingly, we dismiss his appeal.

I.

Redman entered a conditional guilty plea, see FED.R.CRIM.P. 11(a)(2), to one count each of unlawful possession with intent to distribute five grams or more of cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) (2000); unlawful possession of a firearm during a drug trafficking offense, 18 U.S.C. § 924(c) (2000), aggravated assault, 22 D.C. CODE § 504.1 (Michie 1981), attempted assault with a dangerous weapon, 22 D.C. CODE §§ 502, 103 (Michie 1981), attempted kidnapping, 22 D.C. CODE §§ 2101, 103 (Michie 1981 & Supp.2001) and attempted first degree sexual abuse, 22 D.C. CODE §§ 4102, 4118 (Michie 1981 & Supp.2001). The evidence sought to be suppressed was seized when the District of Columbia Joint Fugitive Task Force (Task Force) executed a warrant for his arrest at his apartment in the early morning of May 1, 2000; the District of Columbia Metropolitan Police Department (MPD) subsequently obtained a warrant to search the premises.

According to the testimony of government witnesses, four FBI agents (members of the Task Force) executed the arrest warrant. The agents arrived at the apartment at 6:30 a.m. that day. Three agents stationed themselves at the front and one at the rear of the building. One of the three at the front knocked on the apartment door and announced, "Police, open the door," but received no response. When the agents threatened to forcibly enter the apartment after waiting some ten to fifteen minutes, Redman opened the door, put his hands on his head and surrendered. During the ten to fifteen minute interval, the agent in the rear saw someone briefly peer out of the window of the apartment.

The agents entered the apartment and saw two female teenagers on a couch in the living room adjacent to the entry. The agents told them not to move and the women complied. In plain sight on a window ledge in the living room was a cigar box that contained "green baggies" and what appeared to be marijuana. On a table in the living room, the agents saw another cigar box containing another green bag.

After they secured the two women, the agents searched the apartment for other individuals. They looked in a hall closet ten feet from where Redman was being held and found a rifle leaning against the wall and metal ammunition boxes on the floor. In a bedroom across from the closet, they saw a knife on a dresser and in the bedroom closet saw $900 in U.S. currency. They also checked the bathroom but saw nothing there. The agents secured the apartment and called MPD Detective Jackson to investigate the scene. Before Jackson arrived, one of the two females asked to use the bathroom. An agent searched the bathroom for weapons before allowing her to enter and discovered a shotgun in the bathroom linen closet. The agents then noticed the barrel of a .22 caliber revolver protruding from a duffel bag on the floor near the front door.

Detective Jackson arrived at the apartment between 8:15 and 8:30 a.m. and, learning of the five items observed by the Task Force--the green baggies, the .22 revolver in the duffel bag by the front door, the rifle in the hall closet, the shotgun

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in the bathroom linen closet and the currency--called a MPD mobile crime unit to the scene to process the evidence. The two females were still at the scene (Redman in the meantime had been transported to jail by the Task Force) and remained there while the mobile crime unit began processing the items discovered by the Task Force. Jackson then decided that the two should be taken to the MPD Seventh District headquarters for questioning. One of them needed additional clothing so Jackson allowed her to retrieve clothes from the bedroom, escorted by a female crime scene technician and him. As the female picked up some clothes, Jackson saw a clear plastic package containing what appeared to be a white rock on the floor. Jackson also saw on the floor a round of ammunition of a type not utilized by the weapons discovered by the FBI. At that point, Jackson ordered everyone on the scene to stop working, commanded...

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